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Semega v. State

The trial court erred in replacing a holdout juror, who did not agree with other jurors on the defendant's guilt.

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Abdoulea Semega was convicted of rape. His motion for new trial was denied, and he appeals, asserting that the trial court erred in excusing a juror and alleging prosecutorial misconduct. Because we find that the trial court abused its discretion in removing a holdout juror, we reverse. 1. OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” The controlling law has established a procedure for addressing the question of removal of a juror for cause: The trial court must exercise its discretion in removing a juror, and it may affect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Citations and punctuation omitted. State v. Arnold , 280 Ga. 487, 489 629 SE2d 807 2006.

Here, several hours after retiring to deliberate, the jury sent a note to the court that it was “at an impasse. We cannot decide unanimously.” Semega’s attorney moved for a mistrial, but the trial court denied the motion, brought the jury in, and instructed them to continue their deliberations. Less than an hour later, the jury sent out another note declaring that “more than one juror” was not going to change and declaring, “We are hung.” The trial court sent them home for the evening since they had been deliberating for less than an hour after the court’s instruction.

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